| People v Singh |
| 2016 NY Slip Op 03537 [139 AD3d 761] |
| May 4, 2016 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Baljit Singh, Appellant. |
Edelstein & Grossman, New York, NY (Jonathan I. Edelstein of counsel), forappellant.
Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano,Johnnette Traill, Nancy Fitzpatrick Talcott, and Deborah E. Wassel of counsel), forrespondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Lasak, J.), rendered May 2, 2012, convicting him of manslaughter in the first degree andcriminal possession of a weapon in the fourth degree (two counts), upon a jury verdict,and imposing sentence.
Ordered that the judgment is reversed, on the law, and a new trial is ordered.
After a jury trial, the defendant was convicted of manslaughter in the first degree andtwo counts of criminal possession of a weapon in the fourth degree arising from anincident that occurred in his home during the early morning hours of February 28, 2010.According to evidence presented at trial, the defendant and a close friend, Ranjit, got intoa heated argument with a third man, Jimmy, at the defendant's home. Jimmy and Ranjithad been drinking that night, but the evidence was inconclusive whether the defendantalso had been drinking. The argument escalated and Ranjit stabbed Jimmy in the chest.Then, the defendant stabbed Jimmy in the neck. Jimmy later died in the hospital.
At trial, the People presented numerous witnesses, including Ranjit, who testifiedpursuant to a cooperation agreement, and another person who was present at the time ofthe argument and stabbing. The defendant did not present any witnesses. The People'scase included testimony that the argument began when Jimmy became very loud, vulgar,and aggressive in the defendant's home. Prior to being stabbed by Ranjit and thedefendant, Jimmy brandished a large knife and threatened to stab and kill Ranjit, whoJimmy referred to as "Hindu" or "Punjab." In addition, there was testimony that Jimmytried to kill Ranjit "first." Ranjit testified that he stabbed Jimmy because Jimmy had aknife and was prepared to use it by stabbing him or the defendant. A knife and a knifecase were recovered from Jimmy's body.
On appeal, the defendant contends that the Supreme Court erred in denying hisrequest for a charge regarding the justified use of deadly physical force to defend eitherhimself or Ranjit against Jimmy's use of physical force in the defendant's home (seegenerally Penal Law § 35.15). We agree.
[*2] "A person is justified in using deadly force againstanother if he or she reasonably believes such to be necessary to defend himself or herselfor a third person from what he or she reasonably believes to be the use or imminent useof deadly physical force by such other person" (People v Heron, 130 AD3d 754, 755 [2015]; seePenal Law § 35.15 [2]; People v Ojar, 38 AD3d 684, 684-685 [2007]). Inconsidering whether a justification charge is warranted, a court must view the record inthe light most favorable to the defendant and "determine whether any reasonable view ofthe evidence would permit the factfinder to conclude that the defendant's conduct wasjustified. If such evidence is in the record, the court must provide an instruction on thedefense" (People v Petty, 7NY3d 277, 284 [2006]; see People v Butts, 72 NY2d 746, 749 and n 1, 750[1988]; People v McManus, 67 NY2d 541, 549 [1986]; People v Padgett,60 NY2d 142, 144-145 [1983]; People v Irving, 130 AD3d 844, 845 [2015]; People v Powell, 101 AD3d1369, 1371 [2012]). Thus, if there is any reasonable view of the evidence on whichthe jury might decide that a defendant's actions were justified, the failure to charge thedefense constitutes error (see People v Maher, 79 NY2d 978, 982 [1992];People v McManus, 67 NY2d at 549; People v Irving, 130 AD3d at845).
Unlike certain other defenses, a defendant is not statutorily required to provide thePeople with advance notice of a justification defense (cf. e.g. CPL 250.20), or tospecifically plead justification (cf. CPL 220.15). "Ordinarily, the possibility ofthe defense would not appear until injected by the defendant" (People v Steele,26 NY2d 526, 528 [1970]). However, the prosecution's case, in and of itself, may raisean issue of fact as to whether the defendant was justified in using force such that his orher conduct was entirely lawful (see id. at 528-529; People v Zayas, 88 AD3d918, 920-921 [2011]; seealso People v Clark, 129 AD3d 1, 36 [2015]).
Here, based upon the testimony of the People's witnesses, there was a reasonableview of the evidence that would permit the jury to conclude that the defendantreasonably believed that the use of deadly force was necessary to prevent Jimmy fromusing deadly force against the defendant or his friend, Ranjit (see Penal Law§ 35.15 [1], [2] [a] [i]; cf. People v Irving, 130 AD3d at 844-845).There was testimony that, immediately before he was stabbed, Jimmy was belligerent andwielded a knife inside the defendant's home, and that he had threatened Ranjit's life.Significantly, Ranjit and another witness described Jimmy as the initial aggressor (cf.People v Petty, 7 NY3d at 285-286). Moreover, this incident occurred in thedefendant's dwelling and, thus, to the extent that he believed that Jimmy was about to usedeadly physical force against him, he was under no duty to retreat (see Penal Law§ 35.15 [2] [a] [i]).
Accordingly, the Supreme Court erred in denying the defendant's request for ajustification charge (see Penal Law § 35.15 [1], [2] [a] [i]; cf.People v Irving, 130 AD3d at 845). The error in failing to give the requestedjustification charge was not harmless, as it cannot be said that there was no significantprobability that the verdict would have been different absent this error (see People vIrving, 130 AD3d at 845; People v King, 115 AD3d 873, 875 [2014]; see alsoPeople v Powell, 101 AD3d at 1373).
Since there must be a new trial, we note that there is no merit to the defendant'scontention that the People violated Brady v Maryland (373 US 83 [1963]) byfailing to turn over or translate phone calls made by Ranjit from Rikers Island to thedefendant and his son prior to the defendant's arrest. Although a prosecutor has a duty toturn over, upon the request of defense counsel, evidence favorable to the accused,evidence is not deemed to be Brady material where, as here, the defendant hasknowledge of it (see People v Rodriguez, 223 AD2d 605, 606 [1996]).
The defendant's remaining contentions either are without merit or need not bereached in light of our determination. Leventhal, J.P., Miller, Maltese and Duffy, JJ.,concur.